GRAFTON, Mass.—Grafton issued a cease and desist order Wednesday morning to Grafton and Upton Railroad's construction of a propane storage site on Westborough Road claiming the railroad did not prove federal preemption rights and thus violated town bylaws.

The decision to file the order came after an executive session following Tuesday night’s Board of Selectmen meeting where Jon Delli Priscoli, owner of the rail line, announced one of four 100 foot propane storage tanks, each capable of holding 80,000 gallons, will be delivered Thursday. The selectmen, town administrator, and the town counsel made the decision to issue the order.

“We feel we do have legal authority to stop the construction,” said Assistant Town Administrator Kevin Mizikar. “With the cease and desist order, those tanks will not be allowed to go on the property. Whether they can get them into town and store them elsewhere is to be determined.”

Mizikar said the town is working with the Massachusetts Department of Transportation regarding the movement of the tanks.

The first tank is scheduled to be delivered Thursday afternoon.

The railroad claims they have federal preemption rights and therefore do not have to go through the local channels.

“The Board of Selectmen and neighborhood residents have broad-based concerns with the
construction of such a facility,” the office of the Town Administrator said in a press release. “There are homes, schools, and parks in close proximity to this site. Sufficient documentation has not been provided by the [Grafton & Upton Railroad] related to this construction.”

The town said a fire safety analysis was filed by the railroad with the State Fire Marshall’s Office for site work completed in mid-November. However, the report is still being reviewed. They claim that questions asked in writing to the railroad to fully understand the preemption claim is, to date, unsatisfactory.

“If local authority had authority it would mean something,” said Delli Priscoli in a telephone interview Wednesday morning. He said enough documentation and meetings have been held to determine the preemption status. “We are comfortable with our position and are proceeding as planned.

“The town is playing to a handful of people and they are putting the entire town in jeopardy,” Delli Priscoli added. “We are working within our legal rights. We are providing an affordable energy source to the people.”

When asked if the cease and desist order has any merit, he said it did not. “We are working 100 percent within our federal rights.”

Mizikar said if the railroad moves the tank onto the site, they will take legal action.

Comments (49)

I don't think this is a viable location for a LPG transfer station . . . I would be willing to bet that Mr. Priscolli has met the bare minimum standards required by Federal regulation, but as someone else posted this whole project has been done rather quickly and quietly. Mr. Priscolli has pulled the Railroad card on many occasions in order to meet his own self interests. I would be willing to bet that there are legitimate safety concerns and issues that 'COULD' be brought into light had there been more transparency here. Grafton would be a great town for more businesses, just not one as dangerous, hazardous and riddled with as many issues as this one . . .

This is ridiculous. From all that I have read, this guy has been playing by the rules. Maybe those are federal rules and not town rules, but for the town to decide that the fed rules can be superceded by the town rules isn't their call. If the three who made the exec decision to file a cease and desist put the town in the position of being the recipient of a lawsuit, then who winds up paying if this guy wins the suit? Certainly isn't coming out of their pockets, unless their actions have consequences, like them losing their jobs for putting us in this position.

This whole thing has been blown way out of proportion, in my opinion. There have been a lot of opinions on this, but the issue is that people seem to be confusing opinion with fact, and reacting to unfounded claims and opinion. I think one person commented, either here or at Telegram.com on the article they wrote, and kept referencing "how many bombs" and claiming that an idling truck would somehow be the fuse to ignite this all. That person I know was a former truck driver (as I recognized his posted name). There are gas stations all around town, all of which a tanker comes to and pumps gas, and those trucks are running. Why no issue with that? I have driven by many developments in house, where natural gas is not piped in, and can clearly see the two large propane tanks to the side of those houses...what if there was a leak? What if there was something that could potentially spark an explosion? What about all the trucks that travel through Grafton on the Mass Pike? Or down 122 and 140? I drove down Brigham Hill the other day, got passed by a tanker truck going down that road. What about the CSX line that runs through town, who knows what that is carrying.

The point is that the owner of the G&U RR is working within fed regulations and his right as a business owner. If every move of his is not required to be funneled through the BoS, then he shouldn't have to suffer retaliation for not doing more than what he was obligated to do. He was under the understanding these tanks would not arrive until January, and something changed and he had to adjust that time line. But whether they get delivered today or in two weeks when January is here, he has stated they will not be filled or used at this time, so they are nothing more than empty tanks, and this is what the town steps in to fight?

Stop speculating, stop confusing facts and fiction. People may not like that we have a propane rest area in North Grafton, but look at Osterman in Northbridge, and see whether or not there has been any catastrophic issue there as a point of comparison. I really think we need to start trusting this guy instead of constantly going after him based on what people think, which ultimately is opinion and speculation, not fact. Why on earth would this guy cut corners and potentially ruin his chance to make this business work, especially if it is federally regulated? How is that in his best interest as a business man?

SPL01519, How do you know this guy is playing by the rules? Do you know him or work for him. You talk about facts, the BOS was waiting for a plan because they trusted his word and found out through the town that he already started work at the site. They were not provided with any proof that all the necessary permits and licenses completed by the Feds. Not to mention that he has a history in this town with a development that he was part of that went bankrupt that caused this town some hardship. So, why should we trust him?

The BOS just wants to verfiy that everything is being done to the compliance of the Federal laws and regulations. It is part of their duty to keep the safety in this town. We may have not a legal leg to stand but it seems to me, in my opinion reading the recent articles, that he deliberately deceived the town. The BOS and town administrator were given expectations by this businessman and did not live up to his word. If you have more of the facts that you claim that this guy is in complete compliance, please let us know.

I do not work for him, I don't know him. I am simply reading through comments, opinions, speculation, and outright fiction posted here online, wishing there was more reaction to fact than speculation on what doomsday scenario might play out. So while you ask why we should trust him, I say prove it and back it up. If there is factual evidence that he has purposely skirted procedure, purposely misled the town, then I will come to my own opinion on this based on that. But under no means will I lynch this guy based on speculation from townsfolk with heated opinions that are not based on fact. That is my opinion, and just like you are entitled to yours, I am entitled to mine. I am not saying that you are I are right or wrong, but people need to be smarter, need to come to conclusions based on fact. A project of this size could not have begun or gotten this far without someone in the town knowing about it, not when you got the Building Inspector going after people with illegal decks by poking around on Google Maps (previous new article posted here).

That is all I am saying also. Lets see the facts. I am of the understanding, according to a recent article, that the town did not know anything about the project. This took place at a BOS meeting. I hear ya on the Building Inspector. I respect your opinion.

That is all I am saying also. Lets see the facts. I am of the understanding, according to a recent article, that the town did not know anything about the project. This took place at a BOS meeting. I hear ya on the Building Inspector. I respect your opinion.

Part of the issue is also that people don't come out to these meetings, instead react online from the comforts of their home. Who knows whether these opinions get back to the people that ultimately they are addressed at. If I was to build an addition onto my house, I would go through the process of obtaining the permits, but the town is only going to get as much communication on this project as they require. I am not volunteering any more than I am required to do so. I imagine the G&U RR did give the town was what required, but it seems like there were more details to the 'project', and whether or not all those details were required to be disclosed to the town, that hasn't been stated. It seems as if there was an open invite to inspect the site and ask questions, but that the BoS might have been sitting back waiting for information to be furnished to them. I don't know, this is just speculation. Somewhere there was a disconnect, and the latest go around it does appear the BoS is reacting, based on what I am not certain. But where this should have been a process that was clear, now the town has put us in a lawsuit with this guy and his business, and I can't see how that leads to a good community relation with him and his business. Further, who pays for the lawsuit? What do we gain by doing this? If the lawsuit is countered by this guy for some monetary value, then what, how is that paid?

And FYI, he filed a defamation suit against a selectwoman in Upton for $20M. While I believe if there is merit to take this guy to court, then the town should, if they are doing this to cause issue, or based on unfounded reasoning, the BoS is setting themselves up for potential fallout. Whether or not the guy has a chance of winning, it is still a financial drain on the town.

Part of the issue is also that people don't come out to these meetings, instead react online from the comforts of their home. Who knows whether these opinions get back to the people that ultimately they are addressed at. If I was to build an addition onto my house, I would go through the process of obtaining the permits, but the town is only going to get as much communication on this project as they require. I am not volunteering any more than I am required to do so. I imagine the G&U RR did give the town was what required, but it seems like there were more details to the 'project', and whether or not all those details were required to be disclosed to the town, that hasn't been stated. It seems as if there was an open invite to inspect the site and ask questions, but that the BoS might have been sitting back waiting for information to be furnished to them. I don't know, this is just speculation. Somewhere there was a disconnect, and the latest go around it does appear the BoS is reacting, based on what I am not certain. But where this should have been a process that was clear, now the town has put us in a lawsuit with this guy and his business, and I can't see how that leads to a good community relation with him and his business. Further, who pays for the lawsuit? What do we gain by doing this? If the lawsuit is countered by this guy for some monetary value, then what, how is that paid?

And FYI, he filed a defamation suit against a selectwoman in Upton for $20 Million. While I believe if there is merit to take this guy to court, then the town should, if they are doing this to cause issue, or based on unfounded reasoning, the BoS is setting themselves up for potential fallout. Whether or not the guy has a chance of winning, it is still a financial drain on the town.

and fyi x 3, the suit was settled with both parties reaching an appropriate result - I would quote, but it's not worth my time... meaning, they both dropped both sides. No cash was exchanged, because both were somewhat right and somewhat wrong. Next?

Wasn't able to find any info online that reported on a reached agreement, but the fact is that despite any monetary payout, it does cost to go to court, both in filing paperwork and in retaining the lawyer or legal team to be present for any hearing. So if he did decide to come back after the town for any reason, that will cost us the town, even if the likelihood of success on his end is minimal. The point is that at some point, things were said that were unfounded, and he responded with a lawsuit.

We should be less concerned with the storage facility and the trains carrying propane to it, which we clearly have no control over and more concerned with the transportation of the propane from the facility. An average of 50 trucks a day traveling on streets made for the horse and buggy certainly is of great concern IMHO.

If the DailyVoice decides to do any more background research and reporting on Mr. Priscoli's business practices, he does have prior history in Grafton. In the mid-1990's, he was the developer of Hassanamesit Village (the Elliot Trail neighborhood). He essentially abandoned the development halfway through, leaving many home-buyers and the Town of Grafton high and dry. It meant some homeowners had to literally "buy" their new homes at pubic auction on their front lawns in 1998. It also meant that the rest of the development and convenants were out the window as other developers such as Mr. Magill stepped in to take over individual parcels. What a mess that was.

Town "powers that be" just made a huge mistake and an enemy... He just won a case in Upton I think, and is pursuing a civil case too good for him. The man knows what he is doing and bought the RR so he should do what ever he has to to make it go and be sucsessful. I thought he did mention a lot of this in the last year...A couple of good ol boys and girls (fat cats) stir up the BOS and look what happens.
Super Selectman padgett will come to the rescue

Building permits? Trench Safety inpsections? Storm water runoff prescriptive measures being followed? If we can hold up single family home builders for months, why can't we find a spotted owl or a Loon habitat nearby?
Secondly, if building permits were issued, I would think the town would be already 'on notice' of construction on this property

I will disclaim that with my tagline GURR, my opinions generally favor the railroad. With that said, I'm not sure that a cease & desist order against "construction" ( including the movement of empty storage tanks ) will accomplish much. The railroad has obviously committed financial resources toward this propane storage facility and the halting of the movement of the tanks to the site would seem to accomplish little to its completion. The railroad will just pay for storage off-site somewhere. If it were my money ( and as a Grafton taxpayer, it is... ) that I was spending & I had questions on this facility, I'd put my resources into verifying that the new facility is built to proper standards & passes all required inspections. As ConcernedCitizen noted: Safety first...

Sadly a Cease and Desist is probably unenforceable at this point and it may come back to cost the town a large sum of money and headache if they attempt to strong arm the builder.
I'm still left wondering how this project quietly worked its way into town? The research on safety certainly should have been done sooner rather than later.
The transportation of bulk product along the rail beds is indeed under jurisdiction of the Federal Agencies. It matters not if the company is moving elephant dung or noxious gas.

I was under the impression that the town had expectations from the railroad that they would be able to review a plan. This was in an article recently that the BOS could not comment because they never received a plan. This guy just went ahead started the project. If this was the case, how can you trust this guy if he has no interest in being a partner with the town. The town has a right to make sure it's citizen's are safe.

Side note: Where is Mr. Priscoli's business registered? Potentially this whole project, if completed is a net LO$$ of revenue for the town. Clearly surrounding property values will DEcrease, and therefore tax revenue will DEcrease as well. What about our VOLUNTEER fires department? Bless their souls. How many towns with storage operations this size have a volunteer department?? Will we need to staff up a fire department on the taxpayer's nickel?

What proof can you offer that (a) there will loss of revenue for the town, and (b) that property values will decrease directly because of this business?

Also, last time I visited our volunteer fire department, their chief told me that they have response times that rival Shrewsbury and other non-volunteer stations, that it has not made a difference. So I think we are ok there. You can call them if you are uncertain about their capabilities to handle a fire.

The Town has no standing to interfere with the OPERATION OF THE RAILWAY. That is according to the representative from the STB at last week's meeting. However, does STORAGE of 320,000 gallons of LPG constitute "OPERATION of the RAILWAY"? I think not. Transportation via the railway clearly pre-empts local and state laws. But does STORAGE of 320,000 gallons of LPG in a dense residential area, within .6 miles from a library, park, and elementary school, as well as close proximity of offsite residences constitute "RAILWAY ACTIVITY"? This would appear to me to be the question to address at the State and Federal levels by the regulatory bodies that govern storage sites for LPG.

If the final destination of the material in question is Grafton's storage tanks, I believe preemption does not apply. However, if the RR has a contract to deliver the propane to a customer and is using the tanks as a temporary holding location (ie: the product is still in transit), then preemption applies. I am almost certain we're dealing with the latter of the two cases. No-one dumps 10's of thousands of dollars into a project under the 'hope' that it'll get preemption.

Geez...wrong move. Who did the BoS talk to to make this decision? Did the town lawyer say to do this? Did the Feds say issue the C&D? Or did the agitated citizens at last night's BoS meeting make the BoS panic.
It appears that the RR has the law on its side. The RR does not have to adhere to town regulations. Bitter pill, yes...but that's the way this story goes.

Rather, the RR must follow federal regulation. So, get on the phone and call in the Feds. If the Feds say the RR LP terminal is not safe, then the Feds can decide to issue the C&D. The Feds can block this project.
Will the RR sue the town for the costs of delaying those LP tanks. Will Grafton police block the roads and force the trucks to turn back? Remember, those trucks are being led by State Police. OMG!
Why not take up the offer for a RR-paid, independent "peer review", so we can get an independent 3rd party reviewer, who is responsible to the town, not the RR. Why was that offer not accepted?
This C&D is not a smart move. Please confer with our Federal reps, phone the EPA, phone the STB. Be smart not emotional.

Yeah, I'm afraid the C&D could backfire, and it seems like a bit of a knee-jerk. Closing the Rd would probably be a bad plan, too. It's a tough one. I hope our town has not just shot itself in the foot.

The town should review closely the Hazard Analysis & see how they will comply with requirements. Ask to see list & find out who will be inspecting for compliance.
www.transtechenergy.com/LPG-StorageBlog/?Tag=NFPA%2058

"No fuel will be stored until the Federal Railroad Board and the U.S. Fire Administration, plus state and local fire officials, have reviewed the final construction, Delli Priscoli said. That will be in the spring, he said."

I am not really sure what the point of the cease and desist is. Nothing is scheduled to really take place at this site until the spring. How about some investigative journalism about what specific safety issues surround theses tanks, what monitoring processes exist, etc. There is a business one town over with decades of experience storing and transporting LP gas.

Perhaps the Cease-And-Desist is a move by the BoS to drive up the cost of construction, forcing the owner to put the land up for sale, and the town to buy it for more soccer fields. Or perhaps we can put yet another bank there. Oh, I got it. The town can purchase it, the BoS can put a sham of a proposal together with Honeywell, and a new HVAC unit can be installed on the site with no oversight from taxpayers.
It's just another case of NIMBY. And I'm sure those most vocal were ardent supporters of that pillar of our community recently re-elected to the BoS.

Can you insult anymore people in your post. This Railroad guy has not given the town hardly any information. I think most people want to make sure that he is not cutting corners and he has obtained and all his permits and licenses.

THere should have been done, a Hazard Analysis. It should contain issues related to leakage, emergency response issues & access, ignition sources, who has access to site & what type of vehicles will be entering & leaving. THere is an NFPA code they have to meet that the Town gov & Emergency folks should have bee sent a copy. If you send it to me on line, I will review just as I have in my local city (no cost for comments)! THe NFPA code has location it should not be with in some many feet! How is B&O powering vehicles that pass, electric of diesel? Are their track inspection or ballast vehicles passing that might cause an ignition source. Also, there are required & prudent monitoring devices for gas leaks. Wind direction indicators for Em Response teams.There are leak prevention devices to prevent a loading truck from running into BIG tanks. A leak is likely to stay near ground ( assume Propane) & flow into track area! THere different types of leak prevention devices that can be added..It needs a meeting with town floks (open) after both sides work out a VERY good prevention of a disaster! More after I know more!

Thinking the RR & Fire Marshall you keep you fully safe is WRONG! THere are minimum requirements they can inspect for and many more (+$) that will greatly improve the degree of town safety.. A major leak of gas could roll down Worcester St as iot goes from liquid to gas!
Here is one to start with:
http://www.nfpa.org/assets/files/PDF/Research/FSAManualComplete.pdf

I think this cease and desist order is just to show the towns people that the town is trying to do something. I am positive Mr. Priscolli knows the laws and has been advised by the best attorneys and the Feds what he can and cannot do, this is his business after all and he is very successful at it. My property abuts the Railroad, not in the area where these tanks are going thank god and I really feel for those close to it, I would not want that in my area and I am not at all happy about what is going on. I am willing to bet this will all continue just like in Upton and after legal bills for the town add up we will find out that we are powerless to all of this. I also saw that someone wrote about the derailment behind the Grafton Inn, I looked into it and the Feds did respond so they are aware of what happened but there was no leaks or damage so I don't know what good any of that would do. There were local Police, Fire, DEP, and the Federal Railroad officials and NTSB present at the accident.

I am "positive" that Mr. Priscolli wants all of us who oppose his plan to believe that HE "knows the laws and has been advised by the best attorneys...". As an experienced business executive, I can assure you that "laws" can be interpreted by the courts in many different ways. In my mind, one of the most salient arguments against the pre-emption case would be that the construction and operation of a propane transfer facility is not an essential activity for the G&U Railroad. There are certainly alternative uses for what seems to be a "rail siding facility" for this particular use, rather than an operating railroad activity. So let's not get distracted by Priscolli's PRESUMPTION.

I am particularly disturbed by Mr. Priscolli's assertion that “The town is playing to a handful of people and they are putting the entire town in jeopardy,” -- I am one of the very nearby abutters. There are several hundred homes within a zone that would be impacted should a disaster occur in the vicinity of the proposed transfer facility. Aside from the danger of the (presumably) temporary storage and physical transfer of propane at the immediate site, there are also substantial risks related to the movements of very large volumes of propane through our neighborhood on tankers over which Mr. Priscolli has no control (unless he's kept that as another of his surprises). I would suggest that the town officials and interested citizens review the emergency evacuation plan for the town of Montpelier, VT based on the establishment of a similar propane transfer facility for that community. You can find that document by doing a search on "propane transfer facility", which is probably something everyone concerned with the risks inherent in this project should do.

It probably wouldn't hurt, when you are doing searches, to also search on "Jon Delli Priscolli". I guess if this guy is to be my "Big Brother" neighbor, I'd like to know more about him.

This dude is an A-hole and doesn't give a rat's @ss about anyone in town. I'm all for big business but this dude is going to line his pockets at the expense of the residents of this towns safety. Do you want this in YOUR backyard ??? I think not . . . . good for town officials. If this thing got voted on I'm sure it would get shot down. This guy uses the RR card all the time to do what ever wants . . .

Should have listened to me and built a marijuana dispensary there instead. I joked the other day that you can soon expect a bullett train from Grafton to Milford, but now I see that may not be far from the truth. This Delli Priscoli guy moves fast. Could use him in Washington.

I am not anti business but this guy takes the cake. He has not told the town anything as he goes along his merry way. The least our town leaders can do is to make sure the Feds are actually issuing permits and licenses. Just because he has Federal rights does not mean he can build another Chernobyl in Grafton.

I may be a simple caveman attorney, but even I know that Section 20106 of the Federal Railroad Safety Act (FRSA) contains an express preemption provision setting forth that state regulation of railroad safety and security is prohibited unless: (1) the Secretary of Transportation (or his designate) has not yet regulated the subject matter of the state regulation; or (2) the state regulation is: (a) necessary to eliminate an essentially local safety or security hazard, (b) is not incompatible with federal law, and (c) does not unreasonably burden interstate commerce.

Seems to me that the town is going to have to demonstrate that federal regulations are going to be insufficient to ensure the safe handling of hazardous (read: explosive) materials in Grafton. Tough sell, IMHO.

Eprisby, What about the derailment that occurred last year behind the Grafton Inn. What if that was a container car full of Benzene. Should the town get a copy of the accident report and the cause of the accident.

If you can demonstrate that there are safety concerns with this location or this particular operator that are not going to be addressed by the enforcement of federal regulations, then you may have something you can argue in court.

But to be frank with you... there isn't a city or town in the country that would be excited that propane storage tanks are going up at a local rail facility. And at the same time, the entire country has an interest in moving this stuff from point A to point B. Which is why we have federal regulations to preempt local concerns. Otherwise the stuff couldn't go anywhere. And don't get me wrong, I'm not excited about it either. I'm just saying the burden that the town carries here is a tough one, legally, and other cases like this one have not turned out favorably for the locality.